Durrant v Secretary of State for the Home Department

On a renewed application for permission to appeal in an Article 8 immigration case, the court held that an appellate tribunal must assess proportionality on an accurate factual basis and must not attach material weight to an alleged attempt to circumvent immigration control without evidential support. The tribunal must also address the correct statutory and Rules framework, including whether entry clearance was required. The existence of family life between adults is a fact-sensitive question. Lack of dependency may be relevant, but it does not necessarily constrain the decision-maker from considering the issue more broadly. The court also left open an argument that the relevant interference is that arising from the Secretary of State’s decision, rather than merely from the applicant’s later voluntary departure.

The applicant, a Jamaican national born in 1943, had lived in the United Kingdom from 1960 to 1983 and later made three visits, the last beginning in August 2002. His application for indefinite leave to remain was refused. An Immigration Judge allowed his appeal on continuous lawful residence grounds, but the applicant left for Jamaica before the Secretary of State’s challenge was determined.

Before the Asylum and Immigration Tribunal, he sought to uphold the decision on Article 8 grounds, relying on his private life and family connections in the United Kingdom. The Tribunal rejected the appeal on proportionality grounds and found no established family life. The renewed application concerned whether the Tribunal had misdirected itself about interference, dependency, entry clearance, and the factual basis for treating the applicant as having attempted to circumvent immigration control.

1. Permission granted. The renewed application was granted without restricting the grounds of appeal, to be heard by a three-judge court.
2. The court was troubled by the AIT’s reliance on the finding that the applicant had, in effect, sought to circumvent immigration control when he entered in August 2002. That finding appeared to conflict with the evidence before the Immigration Judge, and the papers disclosed no evidential basis for it. The AIT appeared to have attached weight to the point in its proportionality assessment. If the finding was unsupported, the result might have been different.
3. The AIT also referred to the need for entry clearance as a returning resident. There was arguable force in the submission that Rules 18 and 19 of the Immigration Rules, particularly Rule 19, meant that entry clearance was not required.
4. The approach to interference with private life was also arguable. Although the Tribunal could take account of events since the Secretary of State’s decision under section 85(4) of the 2002 Act, the appeal was against that decision. It was therefore arguable that the relevant question was whether the decision would interfere with the applicant’s private life, rather than whether his later voluntary departure itself did so.
5. Family life was a question of fact for the decision-maker. The Strasbourg materials disclosed conflicting approaches on whether dependency must be shown between adults. The AIT appeared to have treated the absence of dependency as constraining its factual assessment. It was just about arguable that this was an error of law requiring a wider and less constrained approach.

• Court of Appeal (Civil Division): On 14 November 2005, permission to appeal was granted on a renewed application from the AIT decision. The proposed appeal was to be heard by a three-judge court.
• Asylum and Immigration Tribunal: The Tribunal rejected the applicant’s Article 8 arguments, finding the interference with his private life proportionate and no established family life.
• Immigration Judge: The applicant’s appeal had been allowed on a continuous lawful residence basis, a basis he did not seek to support before the Court of Appeal.